Judge: Steven A. Ellis, Case: 21STCV21610, Date: 2024-02-14 Tentative Ruling
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Case Number: 21STCV21610 Hearing Date: February 14, 2024 Dept: 29
Plaintiff’s Motion to Compel Further Responses to Requests for
Production
Tentative
The motion is denied.
Background
This case arises out of a vehicle accident on January 20,
2020, near the intersection of La Cienega Boulevard and La Tijera
Boulevard. On June 10, 2021, Plaintiff
Conrado Ahuizotl Davila (“Plaintiff”) filed the Complaint in this action
against Defendant Graciela Beverly Sprout (“Defendant”) and Does 1 through 50,
asserting causes of action for negligence and negligence per se. Defendant filed an Answer on August 4, 2021.
Following Defendant’s deposition, Plaintiff served Defendant
with Requests for Production (Set Two) on March 10, 2023. (Fanucchi Decl., ¶ 5 & Exh. C.) Defendant served unverified responses on
April 21 and served the verification on April 24, 2023. (Id., ¶¶ 6-7 & Exh. D.)
Subsequently, Plaintiff served a deposition subpoena to
Verizon Wireless and requested that Defendant sign an authorization/consent for
the release of records. (Id., ¶¶ 8-9
& Exhs. E-F.) On May 2, Defendant
stated that she was receiving the requested records from Verizon Wireless and
would forward them to Plaintiff upon receipt.
(Id., Exh. F.) On May 9, Defendant
agreed in writing to extend the deadline for a motion to compel to “two weeks after
receipt of the records.” (Ibid.)
Defendant served redacted copies of the phone records on July
21, 2023. (Id., ¶ 10 & Exh.
G.) Plaintiff states that Plaintiff has not
“produce[d] a verification for the redacted documents received.” (Id., ¶ 11.)
Following an Informal Discovery Conference on November 22, Plaintiff
filed this motion to compel on December 29, 2023. Plaintiff states in the notice of motion and
motion that Plaintiff seeks an order requiring Defendant “to provide further
response to its Request for Production of Documents, Set Two” and that the
motion is brought under Code of Civil Procedure sections 2031.300 and
2031.310. Plaintiff contends in the notice
of motion and motion that Defendant “failed to substantively respond to the requests,
and instead served meritless objections, and then following a meet [and] confer
process, informally supplemented overly redacted phone records for the date of
the subject incident. Said records were
also received with no verifications.”
Plaintiff also requests monetary sanctions.
Defendant filed her opposition on January 31, arguing (among
other things) that the motion was untimely, lacked a separate statement, was
not supported by a showing of good cause, and improperly invaded Defendant’s
right to privacy.
Plaintiff filed a reply on February 6.
Legal Standard
Initial Responses
A party must respond to requests for production of
documents within 30 days after service. (Code Civ. Proc., § 2031.260,
subd.(a).) If a party to whom requests for production of documents are directed
does not provide timely responses, the requesting party may move for an order
compelling response to the demand. (Id., § 2031.300, subd. (b).) There
is no time limit for a motion to compel initial responses, and no meet and
confer efforts are required. (See id., § 2031.300; Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th
390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule
3.1345(b)(1).) In addition, a party who
fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2031.300, subd. (a).)
When a party moves to compel initial responses to
requests for production, “the court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes [the motion], unless it finds that
the one subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.300, subd.
(c).)
In Chapter 7 of the Civil Discovery Act, Code
of Civil Procedure section 2023.010, subdivision (d), defines “[m]isuses of the
discovery process” to include “[f]ailing to respond to or to submit to an
authorized method of discovery.” Where a
party or attorney has engaged in misuse of the discovery process, the court may
impose a monetary sanction in the amount of “the reasonable expenses, including
attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030, subd.
(a).)
Further Responses
“On receipt of a response to a demand for inspection, copying,
testing, or sampling, the demanding party may move for an order compelling
further response to the demand if the demanding party deems that any of the
following apply: (1) A statement of compliance with the demand is
incomplete. (2) A representation of
inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without
merit or too general.” (Code Civ. Proc.,
§ 2031.310, subd. (a).)
Notice of a motion to compel further responses must be given
“within 45 days of the service of the verified response, or any supplemental
verified response, or on or before any specific later date to which the
propounding party and the responding party have agreed in writing.” (Id.,
subd. (c).)
A motion to compel further responses must set forth specific
facts showing good cause for the discovery and must be accompanied by a meet-and-confer
declaration and a separate statement or, in the discretion of the Court, a
“concise outline of the discovery request and each response in dispute.” (Id.,
subd. (b)(1)-(3); Cal. Rules of Court, rule 3.1345.)
“[T]he court shall
impose a monetary sanction under Chapter 7 (commencing with Section 2023.010)
against any party, person, or attorney who unsuccessfully makes or opposes a
motion to compel further response to a demand, unless it finds that the one
subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (h).)
In Chapter 7 of the Civil Discovery Act, Code of Civil
Procedure section 2023.030, subdivision (a) provides, in pertinent part, that
the court may impose a monetary sanction ordering that any person “engaging in
the misuse of the discovery process, or any attorney advising that conduct, or
both pay the reasonable expenses, including attorney’s fees, incurred by anyone
as a result of that conduct.” A “misuse of the discovery process” includes (among
other things) failing to respond or to submit to an authorized method of
discovery; making, without substantial justification, an unmeritorious
objection to discovery; making an evasive response to a discovery request;
disobeying a court order to provide discovery; and making or opposing,
unsuccessfully, a motion to compel without substantial justification. (Code
Civ. Proc., § 2023.010, subds. (d)-(h).)
Discussion
As a threshold matter, the nature of Plaintiff’s motion is
unclear. The
Civil Discovery Act provides for three separate types of motions relating to
inspection demands: (1) a motion to compel a code compliant initial written
response (when no response has been provided) (Code Civ. Proc., § 2031.300);
(2) a motion to compel a further response (when a response has been provided
but it is not code compliant or contains unmeritorious objections) (Code Civ.
Proc., § 2031.310); and (3) a motion to compel compliance with a response
stating that the inspection will be allowed (Code Civ. Proc., § 2031.320).
Plaintiff’s motion cites sections 2031.300
and 2021.310, and so it appears that Plaintiff is intending to proceed under
one (or perhaps both) of those sections.
Which section matters, including as it relates to timing and whether a
separate statement (or equivalent) is required.
Beginning with section 2031.300, a motion to
compel initial responses, there is generally no time limit on such a motion,
and no separate statement (or equivalent) is required. But this does not appear to be a motion under
section 2031.300. Section 2031.300
provides a remedy when a party fails to provide a verified written response to
a document request; here, Defendant provided verified written responses to the
document requests in April 2023. (Fanucchi
Decl., ¶¶ 6-7 & Exh. D.)
Accordingly, the Court must deny any request by Plaintiff for relief
under section 2031.300.
(To the extent that Plaintiff asserts that Defendant had an
obligation to provide a second verified written response to the document
requests after producing the documents, there is no authority cited for such an
obligation, and the Court is aware of none.)
Turning to section 2031.310, a motion to compel further responses,
such a motion must be filed within 45 days of service of the verified response,
or any later date that the parties agree to in writing. (Code Civ. Proc., § 2031.310, subd. (c).) Here, the verified response was served in
April, and the only extension agreed to was until “two weeks after receipt of the
records,” which occurred some time in July 2023. (Fanucchi Decl., ¶¶ 9-10 & Exhs. F-G.) There has been no further written response or
agreement to extend time.
The Court notes that the requirement to participate in an
Informal Discovery Conference does not toll or extend the 45-day rule of Code
of Civil Procedure section 2031.310.
(See Eighth Amended Standing Order for Procedures in Personal Injury Hub
Courts, at p. 8 [“Note: Reserving or scheduling an IDC does not extend the
time to file a Motion to Compel Further Discovery Responses. If parties do not stipulate to extend the
deadline(s) to file a Motion to Compel Further Discovery Responses, the
moving/propounding party may file the motion to avoid it being deemed untimely.”].)
In addition, and independently, Plaintiff has not complied
with the requirement of filing a separate statement or, in the discretion of
the Court, a “concise outline of the discovery request and each response in
dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3); Cal. Rules of Court, rule
3.1345.) Indeed, nowhere in Plaintiff’s
moving papers does Plaintiff even provide the number of which requests for production
are the subject of the motion; the Court should not be asked to engage in
speculation or conjecture on such a fundamental issue.
Accordingly, the Court must deny any request for relief under
section 2031.310 as untimely and as not supported by a separate statement or a
concise outline.
In this ruling, the Court need not reach, and does not reach,
the disputed issues of good cause or privacy.
Conclusion
Plaintiff’s motion to compel is denied.
Defendant is ordered to give notice.